Gill v. Daily , 105 Ala. 323 ( 1894 )

McCLELLAN, J

This case was tried on its merits by the judge of the circuit court without the intervention of a jury. No request for a special finding of the facts was made by either party, and no special finding was in fact made. Nor was there an agreed statement of the facts hpon which the trial was had, but only an agreed statement of the testimony of the witnesses, much of which was conflicting; and this statement amounted to no more than an ordinary bill of exceptions. On this state of the record before us, we can not review the conclusions of facts reached by the presiding judge ; they stand upon the same unrevisable plane as the verdict of a jury.—Quillman v. Gurley, 85 Ala. 595; Calloway v. State, 75 Ala. 37; Bell v. State, 75 Ala. 25.

But. one exception was reserved to the admission of testimony. This went to the note upon which the suit was brought. The note proper, i. e. the promise to pay, was clearly competent and properly admitted: the conclusion of the trial judge that the defendants executed it, a conclusion which we can not review and which, if we could review, we would not disturb, necessitated its introduction in evidence. Whether an objection to the introduction in evidence to the waiver of exemptions embraced in the note would have been well taken we need not decide, indeed can not, because no such objection was interposed. Conceding that the waiver was not binding on the defendant, Wm. J. Gill, because he did not personally sign the note embracing it and did not in writing authorize another to sign it for him, the objection which was made was yet bad and well overruled, for that it went indifferently against both competent and incompetent evidence.—Webb v. Ballard, 97 Ala. 584; Buford, McLester & Co. v. Shannon, 95 Ala. 205; and this though it may be the court had the discretion, if part of the writing offered as a whole were incompetent, to exclude it altogether.—Clark v. Ryan, 95 Ala. 406.

Affirmed.